The situation regarding Assisted Reproduction Techniques (ART), Surrogacy and Parenting rights is very complex in the United States as Federal laws are virtually inexistent and each state has its own set of regulating laws (or sometimes none at all), often leaving each jurisdiction the right to decide on a case-by-case basis.
Embryo, egg and sperm donation process is regulated by the U.S. Food and Drug Administration (FDA). But many aspects of third party conception, like gametes donors’ anonymity or surrogacy for instance, are left out by the U.S. laws, giving way to a wide variety of practices.
Same-sex marriages were declared legal nationwide in June 2015, and single women as well as LGTB people do have legal access to ART and joint adoption countrywide. But LGTB parenting rights are still very unequal from one state to another, and a parenting agreement remains strongly advisable to protect the relationship between a child and its second parent.
Co-parenting is becoming increasingly common, but still represents a tricky situation legally, especially when more than 2 parents are involved. Most states only allow for 2 legal parents, in which case a written co-parenting agreement is necessary, although they are generally not enforceable by law.
As fertility and parenting laws evolve constantly, any person who intends to become a parent through donor conception, surrogacy, adoption or co-parenting should refer to a local specialized attorney for legal counseling.
Donor Conception (embryo, egg and sperm donation) in the United States
No national law regulates Third Party Reproduction (through sperm, egg or embryo donation, or surrogacy) in the United States. The Association Society for Reproductive Medicine (ASRM) publishes guidelines, but those are not enforceable by law.According to those guidelines, access to ART should be granted to anyone considered fit to be a parent, regardless of their marital status, sexual orientation or gender (read the ASRM Ethic committee opinion on access to fertility services by transgender persons).Equal access to healthcare and reproductive rights are considered civil rights, and any discriminating situation can be reported to organizations that fight for LGBT rights such as the National Center for Lesbian Rights (NCLR) or Lambda Legal.
Parentage rights in the case of a medically assisted conception are protected by the 2002 Uniform Parentage Act. According to Article 7 of this act, the intended parents of a child resulting of a third-party, medically assisted, conception, are the ones recognized as legal parents, while the person identified as donor, whether of egg, sperm or embryo, can not, under any circumstances, be considered as such.
And even though the 2002 Uniform Parentage Act act is not enforceable nationwide, and has only been enacted in his current version by 11 states so far (AL, DE, IL, ME, NM, ND, OK, TX, UT, WA, WY), donors are usually exempt of any parental responsibility, as long as the sperm, egg or embryo donation was performed through a recognized ART program.
All ART programs, and more largely, all establishments involved with the use of human cells, tissues, and cellular and tissue-based products (HCT/Ps) must be approved by the FDA and comply with their “Title 21 Code of Federal Regulations (CFR) Part 1271”.
The U.S. Food and Drugs Administration webpage features a search tool to find any registered ART Program by state, including sperm banks and fertility centers.
Regarding donors´ selection, the ASRM publishes a guideline that provides the latest recommendations for the evaluation of potential sperm, oocyte and embryo donors. The selection process must involve screening and testing for sexually transmitted infections, genetic disease and psychological assessment.
Before undergoing an ART procedure through a third party, make sure that the program you have selected both complies with FDA rules and follows ASRM guidelines.
Embryo, oocyte (egg) and sperm donations in the U.S. can be anonymous, known or directed, but in most cases, they are anonymous.
Many clinics make the identity of the sperm donor available to a donor-conceived child at age 18 as part of “open identification” or “identity release programs”, but prospective rearing parents have to choose to use them so they can be effective.
Despite the growing debate on sperms donors’ anonymity, neither the federal government nor individual states have imposed a legal registry system that would forbid anonymous gamete donation. But many donors offspring are claiming their right to know who their biological donor, and several private initiatives like the Donor-Sibling Registry have been successful in reconnecting individuals with their gamete donor, as well as siblings born from the same donor.
When the sperm or egg donor is known, it is recommended that both parties search for separate legal guidance and sign a legal agreement to define the rights of all involved adults with respect to the future child.
More information is available on the ASRM website on Third Party Reproduction (sperm, egg and embryo donation and surrogacy) for patients
The ASRM recommends that payments for sperm donations should only be compensatory and never reach such a level that they may become the main motivation a man to donate his sperm.
But sperm and egg donors’ compensation is not regulated by U.S. laws and prices are fixed by each establishment.
In practice, sperm donors are usually compensated of between 50$ and 200$ per donation.
Egg donors, because time spent and risks involved are greater than for a sperm donation, receive more generous compensations. The latest guidelines issued by the ASRM state that payments to donors above $5,000 must be justified, and should never exceed $10,000. But these levels were established in 2007 and haven’t been revised since. Moreover, they have been challenged in the past years, and even the ASRM was even sued for fixing pricing caps for egg donations.
Insurance coverage for fertility treatment is only required by law in a few states, but the extent of coverage varies greatly from one state to the other. CT, IL, MD, MA, NJ have the most comprehensive laws regarding coverage for fertility treatments. Laws in CA, DC, HI, LA, NY, OH, RI, TX only partially cover such treatment (very often IVF is not contemplated for instance).
In the rest of the U.S., no such laws exist.
You can check your State fertility scorecard with Resolve, the National Infertility Association
California is the only state that has passed a law (AB 960, effective January 2016) that better protects families having children through assisted reproduction, including when conceived through at-home insemination and to unmarried parents.Anywhere else in the U.S., self-insemination is absolutely not ruled and the legal regulations that protect parents who go through a medically-assisted conception do not apply to home inseminations. Therefore, sperm donors and intended parent(s) are strongly advised to get legal counsel before the insemination and, where it is possible, establish a declaration of parentage before the birth of the child.
Surrogacy in the United States
Although gestational agreements are covered by the 2002 Uniform Parentage Act, there is no national regulation of surrogacy in the United States, and absolutely no consistency regarding surrogacy agreements throughout the states. First of all because the 2002 Uniform Parentage Act is only enacted in 11 states, and secondly, because Article 8 of this Act, which deals with gestational agreements, is optional to those enacting states.
According to the Act, “the woman who carries the child to birth pursuant to a gestational agreement is not the legal mother of that child”. Legal parenthood is granted to the intended parents. The gestation must be the result of an assisted conception to fall under Article 8, and a court must have validated the contract before the process starts. All parties, including the gestational mother’s spouse (if married), must agree to its terms. And the carrying mother may be compensated.
Only 2 states have enacted provisions based on this Act so far, and a few others have passed their own legislation regarding gestational surrogacy, some allowing any type of surrogacy, other only gestational (vs. traditional), some ban commercial agreements, others ban all types of surrogacy agreements, and finally, some authorize such agreements only for married couples.
But the vast majority of the states do no have any law that contemplates surrogacy at all.
Because the U.S. legislation surrounding surrogacy is so complex, personalized counselling by a local competent family attorney is strongly advised before going through any type of surrogacy process in the U.S.
Local specificities / exceptions:
So far only 2 states have enacted Article 8 of the 2002 Uniform Parentage Act, Texas and Utah, but both with significant provisions. In Texas for instance, surrogacy laws only apply to married couples.
Other states have comprehensive statutes authorizing surrogacy agreements so long as certain requirements are met. (CA, DE, FL, IL, ME, NV, NH, VA).
A few states explicitly ban all types surrogacy agreements (AZ, IN, NY, ND, MI, DC), some even making it a felony to facilitate a surrogacy contract (MI, NY, DC). Some others have prohibited only those surrogacy contracts entered into for monetary gain by the surrogate (commercial agreements): KY, LA, NE, NV, WA.
In the rest of the states, there is no clear legislation on surrogacy agreements.
Creative Family Connections llc. provides a useful indicative map of surrogacy laws state by state in the USA.
For those couples living in states where surrogacy is banned, surrogacy abroad can still be contemplated, provided that at least one of the 2 intended parents is biologically related to the child.
According to the U.S. Bureau of Consular Affairs, Transmission of U.S. citizenship to children born abroad through Assisted Reproductive Technologies can only happen if at least one of the legal and biological (or gestational) parents is a U.S citizen him or herself. The determination of citizenship of children born abroad to a U.S. citizen parent is the responsibility of the U.S. Department of State and is governed by U.S. law.
In other words, surrogacy abroad should be recognized if the child is biologically related to the intended parent. If not, even if the law in the country where the child is born recognizes surrogacy agreements and finds that U.S. parents are the legal parents of a child conceived through ART, there is always a risk that the child could become stateless.
More information for U.S. Citizens Considering the Use of Assisted Reproductive Technology (ART) Abroad is available on the website of the U.S. Department of State Bureau of Consular Affairs: travel.state.gov
Now that same-sex marriages have been legalized nationwide, the same surrogacy laws should apply to same-sex as to different-sex marriages. Being married or not can condition the enforcement of the surrogacy agreement in some states (see above), but not sexual orientation.
Being recognized as the legal parent of a child should not be an issue for a parent who is biologically linked to the child (or if the intended mother carries the baby, even when not biologically hers). Now, not all states fully recognize non-biological parents. When it is the case, an adoption – or similar court judgment – is strongly advised to make sure their rights will be fully recognized, everywhere they go.
To know more about legal protection for LGBT families, consult Lambda Legal´s website.
Co-Parenting & Second-parent adoption in the United States
Although married couples are usually more likely to be both considered as legal parents (in the case of an ART procedure or a joint adoption for instance), it might still be useful for non-biological parents to legally adopt the child or obtain a court judgment to make sure their right as legal parents are respected, especially for same-sex couples. Even though the U.S. federal court fully recognizes same-sex marriages, not all states have updated their Parenting laws accordingly and it is highly recommended to consult a local family law specialist to make sure both parents are legally recognized.
When 2 persons wish to raise a child together without being in a relationship, even if both are recognized as legal parents, writing a co-parenting agreement can help solve possible future conflictive situations.
A parenting agreement can also be established to protect the rights of a second parent who is not the biological mother or father of the child if he/she is not recognized as a legal parent and may not adopt the child. The National Center for Lesbian Rights (NCLR) provides a fact sheet with more information on Legal Recognition for LGBT Families.
A few states allow for more than 2 persons to be recognized as legal parents. It is the case in Alaska, Delaware, D.C., Louisiana, Massachusetts, Oregon, Pennsylvania, Washington and more recently California.
But in most states, children can only have two legal parents, and this leaves some families in limbo. Establishing a co-parenting agreement, which will determine the obligations and rights of each of the involved parents is probably the best option.
In the case of a known donor conception, a Donor agreement can also be signed between the parties to determine the absence or limitation of co-parenting rights of the sperm donor.
In any case, if you plan to build a non-traditional family, because parenting laws vary so much from one state to the other, it is always best to consult with an experienced family attorney for guidance.
Adoption in the United States
All States have laws that specify the criteria that make a person eligible to be an adopting parent. Singles can adopt anywhere in the U.S., but married couples prove to be widely preferred by adoption agencies.
Adoption agencies, whether public or private, also play an important role in the selection process, and carefully study the situation of intended parents before allowing them to participate in their adoption program.
In the case of an international adoption, adopting parents must comply with the requirements of their state of residence, with the U.S. federal immigration law and with the legislation of the child’s country of origin.
U.S. Citizenship and Immigration Services (USCIS) are responsible for conducting a home study and determine the ability of the intended parent to care for a child. Every state has different requirements for this home study, but in general all home studies will detail personal, financial, and medical information.
If you adopt from a country that is party to The Hague Adoption Convention, your adoption will benefit from additional protections for all parties (children, birth parents, and adoptive parents) but will also involve additional requirements.
The U.S Bureau of Consular Affairs provides a helpful guide about the process of intercountry adoption.
Although the United States Supreme Court ruled in June 2015 that state-level bans on same-sex marriages were unconstitutional, guaranteeing equal rights to same-sex married couples nationwide, many LGBT prospective adoptive parents continue to face discrimination and legal issues in quite a few states that are resistant to change. But local state legislations are evolving fast and adoption by LGBT couples is being increasingly accepted nationwide.
The nonprofit organization Lambda-Legal provides updated status of LGBT people’s rights throughout the U.S, including adoption rights.